MoS victories create new libel law guidance

How the Mail on Sunday reported the story on 24 October

Court victories by the Mail on Sunday have provided new legal guidance over the granting of injunctions in potential libel cases.

The MoS was given the green light to publish a two-page investigative piece on allegations over the business activities of Cherie Blair’s friend, Martha Greene, following a bid to block the article.

Greene’s lawyers went before a High Court judge at nearly 4pm on Saturday 16 October, the day before proposed publication, for an emergency hearing.

At the end of that hearing Mr Justice Fulford ruled that Greene was not entitled to the gagging order she sought, though he imposed a temporary one pending an appeal against his decision which was heard last week. The Appeal Court, for reasons yet to be given, dismissed the challenge and the MoS published on Sunday.

The High Court decision which the appeal judges backed gives strong guidance on the legal test courts should apply when balancing the conflicting needs of those who claim a potential libel should be blocked before it is committed and argument from the media in favour of freedom of expression.

The judge said that historically those seeking to block publications had been unable to obtain injunctions restraining publication of an allegedly defamatory statement when those intending to publish it maintained they could and would justify the alleged libel.

The judge considered two tests to be applied to the evidence in deciding such cases. He said that one was whether it was “clear that the libel was untrue”. It has been held in a leading case that a claimant needs to demonstrate this if an injunction is to be granted.

However, Greene’s lawyers argued that the test of the evidence was not that strong and that what needed to be demonstrated by the claimant was that it was “more likely than not” that the libel was untrue.

In the end though, in a decision which is good news for the media, the judge in the ruling backed by the Appeal Court held that it was the first test that had to be applied.

He said it was evident that this was an approach that had survived for a long time, adding “not least because it provides a test for the grant of interim injunctions in libel cases that is wholly workable”

By Roger Pearson

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